Some further clarification can be offered concerning the recent Supreme Court ruling in India whereby the Supreme Court, in one ruling, clarified two issues: that police do not require a warrant to arrest those accused of proselytisation; and that while courts may not take cognizance of an offence without a warrant, a magistrate's remanding an accused to judicial custody does not amount to taking cognizance of an offence. (For background, see earlier WEA RLC posting: "India: Supreme Court ruling will greatly advance persecution." Link 1)

Some Indian dailies reported quite erroneously that no sanction was required to try a conversion case. Some advocates claim that the ruling cannot be used a precedent as it only applies to the Karnataka case of Pastor Raju, while others note that in case law any ruling may be used as a precedent. Some analysts believe that because the law has not actually been changed, only clarified, it can be assumed that nothing else will change and Christians will not be adversely affected. Many observers wonder why the issue of conversions is even relevant in Karnataka when there is no anti-conversion legislation in that state.

There have been many question and varied opinions and I will endeavour here to expand and clarify my analysis – that the ruling will serve to advance persecution – on the basis of the further information and opinion received. Two submissions have been added as an appendix to the posting.

------------------------------------------INDIAN PENAL CODE

Pastor Raju was not charged under State anti-conversion legislation as none exists in Karnataka. He was charged under Article 153B of the Indian Penal Code which is applicable across all India. (Link 2)

Under Article IPC 153B it is a criminal, jailable offence to make or publish any assertion concerning religion (or race or caste etc) that causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons.

These kinds of religious laws can be easily exploited and abused to make the victim indictable for the hatred and disharmonious, unsettling, even violent acts of an intolerant aggressor. In the present hostile climate, those who engage in peaceful religious expression will need to be pro-actively protected from the schemes of the intolerant.

CRIMINAL PROCEDURE CODE

The Supreme Court ruling simply clarified two elements of Section 196(1-A) of the Criminal Procedure Code (CrPC): No Court shall take cognizance of an offence involving inducement for conversion unless the prosecution has obtained previous sanction of the Central government or of the state government or of the district magistrate.

FIRSTLY: the Supreme Court ruling clarified that Section 196 (1-A) clearly refers to court procedure and not to police procedure. Courts require warrants before they can take cognizance of an offence, but police do not.

As noted in the previous WEA RLC posting on this issue, the police have until now followed the procedure laid down for courts and sought warrants. The Supreme Court has simply clarified that the police are not required to do that. The police may legally arrest an accused, and, according to the CrPC, have 24 hours to present the accused before a magistrate who will rule as to whether the accused should be release on bail or remand to judicial custody.

SECONDLY: the Supreme Court ruling clarified what it means to "take cognizance" of an offence. The Supreme Court has declared that a magistrate's remanding of an accused to judicial custody is not the same as taking cognizance of an offence. Therefore the magistrate does not require a warrant in order to remand the accused to judicial custody.

Normally it has been assumed that a magistrate makes the decision to release on bail or remand to prison on the basis of their consideration of several factors, such as the degree of threat the accused poses to the community and the risk that they might flee or hinder the investigation. This decision is presumably made on the grounds of evidence. One would assume that such a decision, made on evidence, would require some degree of taking cognizance of the offence.

So the situation is: police do not require a warrant to arrest anyone accused of hurting religious feelings or creating religious disharmony. The police may then hold the accused for 24 hours before they have to present them before a magistrate who may then, without a warrant and without (allegedly) giving cognizance to the offence, remand the accused to judicial custody.

In essence the law has not been changed. However, misconceptions that had served to restrain police, slow down procedures and prevent abuses, have been removed. So in reality, while the law has not changed, the heat on the ground surely will, especially in the present climate of resurgent Hindutva and anti-proselytising hysteria – a hysteria driven by the fear-inducing, anger-inciting disinformation and propaganda campaigns of Hindutva forces that equate Christian gospel witness and service with an alleged American conspiracy to subvert and control India. (See "The Hindu Nation and its enemies", in the current edition of the Hindutva journal, The Organiser, Link 3)

Now that India's laws concerning religion have been clarified, it is difficult to imagine that those with malicious intent to hamstring and silence Christians will not rush to exploit and abuse these laws to further escalate the persecution of the Church in India and reap the political gain that comes from fear mongering.

2) Indian Penal Code: http://www.indialawinfo.com/bareacts/ipc.htmlArticle 153B is one of several sections in the IPC that refer to promoting enmity between religious groups and hurting religious sentiments. See also 153A, and Chapter XV : Of Offences Relating to Religion

3) The Hindu Nation and its enemiesBy Sandhya Jain. 27 August 2006http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=145&page=33

--------------------------------------------------APPENDIX

To assist those following, and trying to make sense of this situation, I have copied here two submissions

The first submission comes from the Global Council of Indian Christians, who, motivated by the numerous enquiries they received after the news of the Supreme Court ruling broke, obtained a copy of the Supreme Court ruling and elicited a legal opinion upon it from a senior counsel of the High Court. Here, copied in full, is the legal opinion of that senior counsel.

"The following points arise for the purpose of rendering an opinion regarding the judgment.

"At the outset it may be noted that the said judgment has considered the effect of Section 196(1-A) CR.PC. The court has not gone into the merits of the case and has proceeded to give a finding on two aspects; firstly, whether sanction of the central government, state government or district magistrate is required to prosecute a person under section 153-B IPC and secondly, the court has proceeded to give a finding whether an order remanding an accused to judicial custody amounts to taking cognizance of an offence.

"It is noticed that the said judgment pertains only to this particular case and since the settled position of law has been referred to in the body of the judgment. This order may not act as a precedent. Moreover the Honorable Supreme Court has made a categorical statement that the observations made in the said order are only for a limited purpose to decide the appeal. Since the matter was decided in a narrow compass and the trial being still open, the said judgments may not have any repercussions on the merits of the case."

---------------------------------------

The second submission is from the Christian Legal Association of India which explains, without analysis or comment, the legal meaning of the ruling.

Legal opinion on Pastor Raju vs. State of Karnataka

Many national dailies, referring to a recent judgment the Supreme Court of India claimed that "No sanction was needed for trying conversion cases", leading to wide scale speculation on the implications in the event of arrest of person under sections 153 B of the Indian Penal Code. Most papers have, however, reported the judgment erroneously.

Contrary to newspaper reports, the Supreme Court has not negated the need for sanction as required under section 196 but has decided a very narrow point of law. First, that an order of remand does not amount to taking of cognizance of the offence and second that the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage.

Section 196 (1) of the Criminal Procedure Code contemplates sanction from the central or state government or of the district magistrate concerned for prosecution of offences under Section 153-B of the Indian Penal Code. Section 482 Cr.P.C. gives inherent powers of the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court.

In the present case, the Supreme Court was merely making a distinction between taking cognizance of an offence by the court and registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation.

The judgment states that "a plain reading of Section 196 Cr.P.C. will show that no Court can take cognizance of an offence punishable under Section 153-B or sub-section (2) or sub-section (3) of Section 505 of Indian Penal Code or a criminal conspiracy to commit such offence except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The opening words of the Section are 'No Court shall take cognizance' and consequently the bar created by the provision is against taking of cognizance by the Court. There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by Section 173 Cr.P.C. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of Section 196(1-A) Cr.P.C. and no illegality of any kind would be committed."

Drawing on various previous judgments the Supreme Court observed that "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence. The Court further observed that it is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

Court has stated that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.

In the present case neither any complaint had been filed nor any police report had been submitted nor had any information been given by any person other than the police officer before the Magistrate competent to take cognizance of the offence. After the FIR had been lodged and a case had been registered under Section 153-B IPC, the respondent was arrested by the police and thereafter he had been produced before the Magistrate. The Magistrate had merely passed an order remanding him to judicial custody.

Further the court observed that in this present case the High Court had acted in haste to quash the FIR even though the investigation had only just commenced. The petition was allowed by the High Court while the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the in charge of the police station concerned to the Magistrate empowered to take cognizance of the offence.

On Friday 4 August 06, India's Supreme Court ruled that police do not require warrants in order to lodge First Issue Reports (FIRs), arrest and detain anyone accused of involvement in religious conversion activities.

HINDU TALIBAN

Clearly this ruling opens the door for police with Hindutva sympathies to act as Hindu Taliban. It also opens the door for Hindutva forces to employ corrupt and sympathetic police as their agents of persecution.

Nuns, pastors, bishops and evangelists, as well as Christian aid workers, teachers and social workers, are all immediately at risk of arrest and imprisonment because of their Christian witness. In fact every Christian, actively witnessing or not, is at risk from hostile elements that may exploit the opportunity to bring false charges against them, inspired by a variety of motives, in the same manner that the blasphemy law is exploited for personal gain in Pakistan.

NO SANCTION REQUIRED

The Times of India reports: "Despite the bar on courts to take cognizance of an offence relating to proselytisation without the prosecution obtaining prior sanction either from the Central government, state government or the district magistrate, the police can lodge FIRs and arrest those indulging in such activity, the court has ruled." (Link 1)

"A Bench comprising Justices G P Mathur and Dalveer Bhandari said police do not require prior sanction of anybody in lodging an FIR or arresting a religious leader, if there is a complaint of proselytisation against him."

Previously the practice had been that police would follow Section 191(1-A) of the Criminal Procedure Code. The Times of India explains, "Section 191(1-A) of CrPC says that 'no court shall take cognizance' of an offence involving inducement for conversion unless the prosecution has obtained previous sanction of the 'Central government or of the state government or of the district magistrate'." This protected religious leaders from harassment at the hands of police.

By its ruling, the Supreme Court has drawn a clear distinction between courts taking cognizance of an offence pertaining to proselytisation, and police lodging FIRs and arresting the religious figures alleged to be proselytising. So courts require a warrant before they hear a proselytism case, but police do not require a warrant to file criminal charges or to arrest and detain those so accused – those who should be regarded as innocent until proven guilty.

TRIGGER

In January 2005, Pastor Paulraj Raju of Kanartaka state was beaten by local Hindus and later arrested by local police on charges of attempting to convert Hindus. A criminal case was registered against Pastor Raju on 15 January 2005. His wife filed a petition against the arrest on 27 January 2005 and the proceedings were quashed by the Karnataka High Court on 23 February 2005, while the investigation was continuing, on the grounds that police had arrested Pastor Raju and registered the case without first obtaining a warrant and therefore the proceedings were illegal. Pastor Raju was released on 3 March 2005. However, the Karnataka government then appealed against the High Court order which quashed the case against him.

FAMILIAR WITH PERSECUTION

Pastor Paulraj Raju is familiar with persecution. He was attacked also on 1 May 2005. On that occasion he was so badly beaten he required hospitalisation. According to Compass Direct around 60 people were meeting in Pastor Raju's home in Mangalwarapete village near the Mysore district in Karnataka state when a 500-strong mob of Hindu militants and nationalists entered and violently attacked Pastor Raju, his wife, and other Christians, leaving both Pastor Raju and his wife bleeding profusely.

SUPREME COURT EXPLAINS RULING – DENIES MISCARRIAGE OF JUSTICE

The Times of India reports: "The [Supreme] court explained that absence of prior sanction, a mandatory pre-requisite for a court to take cognizance of such offence, would not prevent a magistrate from remanding to police or judicial custody of an accused arrested by the police for the offence of proselytisation.

"There is no bar against registration of a criminal case or investigation by the police agency or submission of a chargesheet against the accused in such cases, Justice Mathur, writing for the Bench, said.

"Mere production of the arrested accused before the magistrate and the latter remanding him to custodial detention does not amount to taking cognizance of the offence, for which alone prior sanction is required, the Bench said."

IndLaw.com reports: "The apex court further ruled 'The specified authority empowered to grant sanction does so after applying its mind to the material collected during the course of investigation. There is no occasion for grant of sanction soon after FIR is lodged nor such a power can be exercised before completion of the investigation and collection of the evidence. Therefore the whole premises on the basis of which the proceedings have been quashed by the high court is wholly erroneous in law and is liable to be set aside." (Link 2)

IndLaw continues: "The Supreme Court in its concluding remarks observed, 'Power can be exercised to quash the criminal proceedings pending in any court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This being the settled legal position, the high court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by section 482 Cr P C when the matter was still at the investigation stage.'

"The apex court also described as wholly unjustified the sweeping remarks made by the High Court that initiation of criminal proceedings was an abuse of the courts process court and miscarriage of justice."

That a person can be arrested and detained without warrant is indeed a gross miscarriage of justice and abuse of human rights. It will certainly advance the Hindutva agenda and the persecution of Christians in India.

Ever since being elected President of Iran in June 2005, Mahmoud Ahmadinejad has used every means he can not only to drive Iran backwards to the days of the Islamic Revolution, but also to drive it forward to become a world leader in belligerence. Ahmadinejad is driven by ideology. He believes his divine calling is to hasten the coming of the Mahdi (the Shia messiah, the Hidden 12th Imam) and prepare Iran to receive him. According to the myth, the Mahdi, who supposedly disappeared in the 9th Century, will return from his occultation (concealment) in the well behind the Jamkaran mosque on the outskirts of Qom during a time of world chaos. He will lead the apocalyptic battle between good and evil and establish the global rule of Islam.

Convinced the Mahdi's return is imminent, Ahmadinejad is preparing Iran to receive him. Various infrastructure projects are underway for the Mahdi's benefit, and Ahmadinejad has vowed to rid Iran of Christianity and all other offensive non-Islamic influences and practices. He is also agitating world chaos by inciting anti-Semitism, advocating genocide, bolstering his arsenal, courting dictators and stoking tension across the globe. According to the myth, when the Mahdi returns from occultation Jesus will return from heaven to be his follower and pray behind him. Jesus will fight against the Dajjal, the deceiver or false messiah. There will be an apocalyptic battle between good and evil and Jesus will declare Islam to be the true religion and convert all Christians to Islam. The world will be transformed into a perfect Islamic society ruled over by the Mahdi. Then the Day of Resurrection will come. Hezbollah, an Iranian asset, holds the same ideology.

Persecution against the Iranian Church increased as soon as Ahmadinejad was elected. In the latest incident an Iranian Christian named Issa Motamadi was imprisoned for his faith on 24 July in the north-western town of Resht. He will soon stand trial before a Revolutionary Tribunal. According to sources, Issa and his wife Parvah, both converts to Christianity, came to the attention of the authorities seven months ago when they decided to give their new-born son a Biblical, Christian name. A security official is said to have advised Issa to renounce his faith. He also intimated that it may take several executions before Iranians actually comprehend the reality of the religious situation. There are rumours that Parvah may also be targeted. The family desperately needs a lawyer courageous enough to advocate with conviction for Issa's and Parvah's rights. Issa's mother, who is not a Christian, is traumatised by the situation. All their Christian friends will be at risk.

Observers are concerned Ahmadinejad may increasingly persecute Christians while the eyes of the world are on the conflict in the Levant. But he who made the eye does see! (Psalm 94:8-11) So we appeal to Christ, who has promised to build his Church, and to whom all authority in heaven and earth has been given for the benefit of the Church (Ephesians 1:22).

PLEASE PRAY SPECIFICALLY FOR:

* the Lord to stand against, frustrate and confound those rulers who 'plot together against the Lord' (Psalm 2), especially Iran's President Mahmoud Ahmadinejad and all the leaders who support his agenda against the Church.

* God's Holy Spirit to do an amazing, powerful, subversive work in Iran, revealing Christ as Messiah, Redeemer, Saviour and friend.

* Issa & Parvah Motamadi and their young son, as well as their pastor, Christian friends and extended family, all of whom could be at risk along with Issa. May God protect and keep them physically, mentally, emotionally and spiritually, and give them strength and a profound experience of his presence.

* God to provide Issa Motamadi with an advocate and with the right words to speak (Matthew 10:19), and may all things work together for the Kingdom and glory of God.